Trial and Error: judges behaving badly1:37

Some of these offensive statements made by judges are almost as shocking as the crimes on trial.

August 1st 2014

4 years ago

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FOR the most part judges do an admirable job summing up lengthy trials and giving well reasoned and researched decisions.

It’s something you would expect from legal professionals who have, in many cases, years of legal experience and are able to think quickly on their feet.

But like everyone they make mistakes, and there have been some absolute howlers. Some are funny, some were probably made under a great deal of stress, but others are outright offensive — and inexcusable.

And let’s face it when you are sitting in judgment over other people at the head of a court there is nowhere to hide when things do go wrong.

Here are some things that should never have been said by anyone, let alone a judge.

The incest remark

Earlier this month New South Wales District Court Judge Garry Neilson caused widespread outrage when he compared incest and paedophilia to homosexuality.

Pictured is Judge Garry Neilson, who has compared incest and paedophilia to homosexuality.Source:Supplied

Judge Nielson told a court that just as gay sex was socially unacceptable in the 1950s and 1960s but was now widely accepted, “a jury might find nothing untoward in the advance of a brother towards his sister once she had sexually matured, had sexual relationships with other men and was now ‘available’, not having a [sexual] partner”.

He made the comments during the case of a Sydney man charged with repeatedly raping his younger sister in the 1980s.

After the remarks were reported, the judge was referred to the NSW Judicial Commission and removed from sitting on any criminal trials until the Commission complete its investigation into the comments.

Marcus Einfeld, a former Federal Court judge, served time in jail after pleading guilty to charges of perjury and perverting the course of justice.Source:News Corp Australia

The big fat lie

If that was outright offensive then formerFederal Courtjudge Marcus Einfeld’s attempt to get out of a speeding fine showed poor judgment — and was ultimately found to be criminal.

In August 2006, he contested a $75 speeding ticket, claiming he had lent his car to an old friend. The only problem was the friend had been dead for three years.

He had his day in court, as a defendant this time, and pleaded guilty to perjury and making a false statement with the intent to pervert the course of justice.

He later said it was a “silly snap moment”. You don’t say.

Patricia June "Pat" O'Shane former magistrate of the Local Court of New South Wales in Sydney.Source:News Limited

Thomas Kelly, 18, was a victim of a “king hit” in Kings Cross. But former Magistrate Pat O’Shane enraged his family when she said his attacker was not a “monster”.Source:News Limited

The callous remarks

Former magistrate Pat O’Shane was never far from the headlines and was even referred to the Judicial Commission by former NSW Premier Barry O’Farrell after a controversial decision.

Three years ago Ms O’Shane dismissed a charge against an African-born Australian man who was alleged to have assaulted a paramedic.

Mr O’Farrell took issues with a number of parts of the decision which included a line of questioning where Ms O’Shane suggested the paramedic “didn’t like blacks”.

In 2010 a Supreme Court judge overturned a decision of Ms O’Shane’s after ruling her finding contained legal errors.

And then last year there was even more controversy when speaking about the person that king hit Thomas Kelly was “not a monster, he is an ordinary, everyday lad”.

The completely out of touch

Also this month, a judge in the US state of Montana, G.Todd Baugh, caused outrage when he said a teenage rape victim was “probably as much in control of the situation as the defendant, and that she “appeared older than her chronological age”.

Montana District Judge G. Todd Baugh reads a statement apologising for remarks he made about a 14-year-old girl raped by a teacher. Photo: APSource:Supplied

Baugh apologised after a public outcry, and in a rare move, was censured by way of a statement by the Supreme Court — essentially a public statement a judge is guilty of misconduct.

But he certainly isn’t alone making inappropriate comments about sex crimes.

The controversial comment

In April a female judge publicly implied a rape victim was promiscuous and wasn’t the “victim she claimed to be”.

State District Judge Jeanine Howard made the comments to The Dallas Morning News after controversy erupted when she gave the rapist — who confessed — a more lenient sentence than is normal with the possibility of no conviction.

In explaining her decision-making to the Morning News, Howard said the girl texted the offender, asking him to meet her and she agreed to have sex with him, but didn’t want to do so at school. She also said the girl had several sexual partners and had given birth to a child. She also added that the offender’s age at the time of the offence was a factor in her decision. He was 18.

“She wasn’t the victim she claimed to be,” the judge told the newspaper. “He is not your typical sex offender.”

The victim, her family and even high ranking legal figures responded by saying the judge was sending the wrong message to victims and potential victims.

The plain offensive

For some reason the most heinous of crimes keep causing judges to totally lose the plot. This 2012 example from the United States would be among the worst.

A southern California judge, Derek Johnson, said a rape victim “didn’t put up a fight” and indicated he didn’t believe that rape was physically possible.

“I’m not a gynaecologist, but I can tell you something. If someone doesn’t want to have sexual intercourse, the body shuts down. The body will not permit that to happen unless a lot of damage is inflicted, and we heard nothing about that in this case.”